There was no finding of UnIntellectual Property in this case out of the Tenth Circuit, but it did highlight two items that I believe are worthy of note to any copyright attorney, especially those litigating copyright infringement cases involving software. The case involved a payroll processing company suing another company and its owner for copyright infringement of computer software code. The Defendant appealed after the District Court appointed a special master and adopted the special master report that found copyright infringement had occurred, thus leading to the Court ordering all copies of the infringing software destroyed. The issues on appeal, that form the basis of my two practice tips relate to (1) the use of a special master and (2) analysis of software code for infringement.

The appointment of a special master to assist the Court is worth consideration in copyright infringement and/or trade secret cases involving computer source code. This is typically something a plaintiff will request so as to help establish its cause of action.

As it relates to analysis of software code to determine if copyright infringement has occurred, this Court makes clear that any special master (and I would proffer any expert) should not only apply the abstraction-filtration-comparison test but also document such application. The abstraction-filtration-comparison test is summarized as follows:

First, in order to provide a framework for analysis, … a court should dissect the [work] according to its varying levels of generality as provided in the abstractions test.4 Second, poised with this framework, the court should examine each level of abstraction in order to filter out those elements of the [work] which are unprotectable. Filtration should eliminate from comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scenes a faire material, and other unprotectable elements suggested by the particular facts of the program under examination. Third, the court should then compare the remaining protectable elements with the allegedly infringing [work] to determine whether the defendants have misappropriated substantial elements of the plaintiff’s [work]. Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1371 (10th Cir. 1997)

Ultimately, these two tips can help establish a successful copyright infringement of computer software source code case.